UPDATE: Feds files suit to throw out Arizona immigration law

THE ASSOCIATED PRESS

Published 12:00 am, Tuesday, July 6, 2010

The federal government took a momentous step into the immigration debate Tuesday when it filed a lawsuit seeking to throw out Arizona's crackdown on illegal immigrants, saying the law blatantly violates the Constitution.

The lawsuit filed in federal court in Phoenix sets the stage for a high-stakes legal clash over states rights at a time when politicians across the country have indicated they want to follow Arizona's lead on the toughest-in-the-nation immigration law.

The legal action represents a thorough denunciation by the government of Arizona's action, declaring that the law will "cause the detention and harassment of authorized visitors, immigrants and citizens who do not have or carry identification documents" while altogether ignoring "humanitarian concerns" and harming diplomatic relations.

Related Stories

Supporters of the law say the suit was an unnecessary action by the federal government after years of neglecting problems at the border. Republican Gov. Jan Brewer called the lawsuit "a terribly bad decision" and defended the law as "reasonable and constitutional"

Arizona passed the law after years of frustration over problems associated with illegal immigration, including drug trafficking, kidnappings and murders. The state is the biggest gateway into the U.S. for illegal immigrants, and is home to an estimated 460,000 illegal immigrants.

The law requires officers, while enforcing other laws, to question a person's immigration status if there's a reasonable suspicion that they are in the country illegally. The law also makes it a state crime for legal immigrants to not carry their immigration documents and bans day laborers and people who seek their services from blocking traffic on streets.

Other states have said they want to take similar action — a scenario the government cited as a reason for bringing the lawsuit.

"The Constitution and the federal immigration laws do not permit the development of a patchwork of state and local immigration policies throughout the country," the suit says.

The heart of the legal arguments focus on the Supremacy Clause of the Constitution, a theory that says federal laws override state laws. The lawsuit says there are comprehensive federal laws on the books that cover illegal immigration — and that those statutes take precedent.

"In our constitutional system, the federal government has pre-eminent authority to regulate immigration matters," the lawsuit says. "This authority derives from the United States Constitution and numerous acts of Congress. The nation's immigration laws reflect a careful and considered balance of national law enforcement, foreign relations, and humanitarian interests."

The lawsuit also says that the Arizona measure will impose a huge burden on U.S. agencies in charge of enforcing immigration laws, "diverting resources and attention from the dangerous aliens who the federal government targets as its top enforcement priority."

The government is seeking an injunction to delay the July 29 implementation of the law until the case is resolved. It ultimately wants the law struck down.

Brewer predicted that the law would survive the federal challenge as well as pending suits previously filed by private groups and individuals.

"As a direct result of failed and inconsistent federal enforcement, Arizona is under attack from violent Mexican drug and immigrant smuggling cartels. Now, Arizona is under attack in federal court from President Obama and his Department of Justice," Brewer said. "Today's filing is nothing more than a massive waste of taxpayer funds."

State Sen. Russell Pearce, the principal sponsor of the bill co-sponsored by dozens of fellow Republican legislators, denounced the lawsuit as "absolute insult to the rule of law" as well as to Arizona and its residents.

The lawsuit is sure to have legal and political ramifications beyond Arizona as the courts weigh in on balancing power between the states and the federal government and politicians invoke the immigration issue in this crucial election year.

Reflecting the political delicacy of the issue, three Democratic members of Congress in Arizona asked the Obama administration not to bring the suit in a year when they face tough re-election battles. On the Republican side, Sen. John McCain is locked into a tough primary fight as his right-leaning GOP challenger takes him to task for his earlier promotion of comprehensive immigration reform, which he has since abandoned in favor of a message to "Complete the danged fence."

The case focuses heavily on the legal argument called pre-emption — an issue that has been around since the Founding Fathers declared that the laws of the United States "shall be the supreme Law of the land."

The Obama administration's reliance on the pre-emption argument in the Arizona case marks the latest chapter in its use of this legal tool.

Within months of taking office, the Obama White House directed department heads to undertake pre-emption of state law only with full consideration of the legitimate prerogatives of the states.

The 2009 directive was aimed at reversing Bush administration policy which had aggressively employed pre-emption in an effort to undermine a wide range of state health, safety and environmental laws.

"The case strikes me as incredibly important because of its implications for the immigration debate," said University of Michigan constitutional law professor Julian Davis Mortenson. "The courts are going to take a close look at whether the Arizona law conflicts with congressional objectives at the federal level."

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, said he's not surprised by the Justice Department's challenge but called it "unnecessary."

"The issue was already teed up in the courts. There's no reason for the Justice Department to get involved. The Justice Department doesn't add anything by bringing their own lawsuit," Kobach said in an interview.

The Mexico government welcomed the decision to sue to block a law that it said "affects the civil and human rights of thousands of Mexicans."

Previous coverage:

The U.S. Justice Department is filing a lawsuit challenging the constitutionality of Arizona's new law targeting illegal immigrants, setting the stage for a clash between the federal government and state over the nation's toughest immigration crackdown.

The planned lawsuit was confirmed to The Associated Press by a Justice Department official with knowledge of the plans. The official didn't want to be identified before a public announcement planned for later Tuesday by Attorney General Eric Holder and Homeland Security secretary Janet Napolitano, a former Arizona governor.

The lawsuit will argue that Arizona's law requiring state and local police to question and possibly arrest illegal immigrants during the enforcement of other laws such as traffic stops usurps federal authority.

The government will likely seek an injunction to delay the July 29 implementation of the law until the case is resolved.

The government contends that the Arizona law violates the supremacy clause of the Constitution, a legal theory that says federal laws override state laws. It is already illegal under federal law to be in the country illegally, although the punishment and enforcement tactics of the Arizona are much more severe.

Tuesday's action has been expected for weeks. President Barack Obama has called the state law misguided. Supporters say it is a reasonable reaction to federal inaction on immigration.

Prior to seeing the lawsuit or receiving any official notification, Gov. Jan Brewer's spokesman called the reported decision to sue "a terribly bad decision."

"Arizona obviously has a terrible border security crisis that needs to be addressed, so Gov. Brewer has repeatedly said she would have preferred the resources and attention of the federal government would be focused on that crisis rather than this," spokesman Paul Senseman said.

Three of the five Democrats in Arizona's congressional delegation, who are facing tough re-election battles, had also urged Obama not to try to block the law from going into effect.

"This lawsuit is a sideshow, distracting us from the real task at hand," Democratic Rep. Ann Kirkpatrick said in a statement Tuesday. "A court battle between the federal government and Arizona will not move us closer to securing the border or fixing America's broken immigration system."

The law requires officers, while enforcing other laws, to question a person's immigration status if there's a reasonable suspicion that they are in the country illegally.

Arizona passed the law after years of frustration over problems associated with illegal immigration, including drug trafficking and violent kidnappings. The state is the biggest gateway into the U.S. for illegal immigrants, and is home to an estimated 460,000 illegal immigrants.

Obama addressed the Arizona law in a speech on immigration reform last week. He touched on one of the major concerns of federal officials, that other states were poised to follow Arizona by crafting their own immigration enforcement laws.

"As other states and localities go their own ways, we face the prospect that different rules for immigration will apply in different parts of the country," Obama said. "A patchwork of local immigration rules where we all know one clear national standard is needed."

The law makes it a state crime for legal immigrants to not carry their immigration documents and bans day laborers and people who seek their services from blocking traffic on streets.

The law also prohibits government agencies from having policies that restrict the enforcement of federal immigration law and lets Arizonans file lawsuits against agencies that hinder immigration enforcement.

Arizona State University constitutional law professor Paul Bender said the federal government's involvement throws a lot of weight behind the argument that federal law pre-empts Arizona's measure.

"It's important to have the federal government's view of whether state law is inconsistent with federal law, and they're the best people to say that," Bender said.

Kris Kobach, the University of Missouri-Kansas City law professor who helped draft the Arizona law, said he's not surprised by the Justice Department's challenge but called it "unprecedented and unnecessary."

He noted that the law already is being challenged by the American Civil Liberties Union and other groups opposed to the new statute.

"The issue was already teed up in the courts. There's no reason for the Justice Department to get involved. The Justice Department doesn't add anything by bringing their own lawsuit," Kobach said in an interview.